HC Deb 12 July 2000 vol 353 cc1005-16
Ms Stuart

I beg to move amendment No. 46, in page 2, leave out from beginning of line 7 to "or" in line 9.

Mr. Deputy Speaker

With this, it will be convenient to discuss the following: Government amendments Nos. 47 to 49.

Amendment No. 33, in clause 2, page 3, line 5, leave out "services are" and insert— 'a substantial part of the services provided are services'. Amendment No. 34, in page 3, line 11, leave out "any" and insert "a substantial part".

Government amendment No. 50.

Amendment No. 97, in clause 3, page 3, line 41, at end insert— '; or '(d) it is a sheltered housing development in which residents live in defined self-contained units and are supplied with nursing or personal care on a variable basis according to their needs'. Government amendment No. 51.

Amendment No. 98, in clause 4, page 4, line 20, at end inser— '( ) "Healthcare agency" means, subject to subsection (6), any undertaking which consists of or includes arranging the provision of direct medical services performed by nurses to people in their own homes, or any undertaking which consists of or includes arranging the provision of any personal or medical care performed by occupational therapists, speech therapists or physiotherapists to people in their own homes.'. Government amendment No. 52.

Amendment No. 99, in page 4, line 42, after second "agency,", insert "a healthcare agency,".

Government amendments Nos. 80, 81 and 85 to 93.

Ms Stuart

I do not intend to detain the House, as these amendments are all tabled in response to concerns raised by the hon. Member for Runnymede and Weybridge (Mr. Hammond) in Committee. I shall speak first to amendments No. 46 and Nos. 85 to 93.

In discussion on clause 1 in Committee, I undertook to consider whether it was necessary to exempt homes provided under section 82(5) of the Children Act 1989. That section allows the Secretary of State to arrange for the provision, equipment and maintenance of homes for the accommodation of children in need of particular facilities and services which are, in the opinion of the Secretary of State, unlikely to be available in community homes. This section of the Children Act 1989 replaced section 64 of the Children and Young Persons Act 1969.

The two youth treatment centres—the St. Charles centre in Brentwood, Essex, and Glenthorne in Birmingham—were established in the late 1970s under the 1969 Act. No homes have been established under section 82(5) of the 1989 Act.

In 1995, the St. Charles centre was closed, and Glenthorne will close on 13 July. I have taken the view that local authorities, the health service and specialist facilities in the private sector are better placed to care for the type of children placed in Glenthorne. I have therefore concluded that it is no longer appropriate for my Department to run such a child care facility and that we should withdraw from providing such a service.

Although there is no current intention of using section 82(5) of the 1989 Act to establish any more of these homes, its use cannot be ruled out at some point in the future. In those circumstances, it is my view that these homes should be regulated as children's homes by the National Care Standards Commission, and Government amendment No. 46 amends clause 1 accordingly. Government amendments Nos. 85 to 93 are consequential to bringing these homes within the regulatory framework.

I turn now to Government amendment No. 48. The Bill provides for independent schools that accommodate children for more than 295 days a year to be registered as children's homes. The reason for this dual registration is that, where children do not normally return home to their families during the holidays, they need the added protection that is provided by registration as a children's home.

Government amendment No. 48 will bring all boarding schools—that is, those in the voluntary and state sectors as well as the independent sector—into the dual regulation provision. It is important that children who spend more than 295 days a year in a boarding school, regardless of whether it is independent or not, should receive the added protection of being in a children's home.

In our Committee deliberations, the hon. Member for Runnymede and Weybridge tabled a number of probing amendments to find out exactly how we planned to use the power to except establishments and agencies from the definitions, contained in clauses 1, 3 and 4, of children's homes, care homes, domiciliary care agencies, residential family centres, fostering agencies and nurses agencies.

The hon. Member was concerned that we should not use the powers to exempt individual establishments or agencies from the requirement to register with the commission. I explained in Committee that it was certainly never our intention to exempt individual establishments or agencies from the definitions. We only ever intended to use the powers to except types of establishment or agency. However, I am happy to put the matter beyond doubt, and I have therefore tabled these amendments to clauses 1, 3 and 4 today.

On amendments Nos. 49, 50, 80 and 81, there was much debate in Committee on the language used in the Bill to describe people with learning disabilities. It was felt appropriate that mental disorder should be defined in the Bill as an illness. It is quite right that "illness" is defined in what is now clause 120 in such a way as to include mental disorder, and that "mental disorder" is defined as including arrested or incomplete development of mind which covers learning disabilities.

On reflection, I agree with the hon. Member for Runnymede and Weybridge and other members of the Committee who spoke eloquently on the subject. I have therefore tabled amendment No. 80 to remove mental disorder from the definition of illness in clause 120. I have also tabled consequential amendments to the definition of a hospital in clause 2 and a care home in clause 3. The amendments separate mental disorder from illness and list it separately in its own right.

The last amendment in the group includes mental disorder in the definition of disability in clause 120. At the same time, we have taken the opportunity to update the language in these provisions to provide a more acceptable definition of "disabled".

I am grateful to members of the Committee for drawing our attention to these issues, as I believe that it has helped us improve the Bill in these important respects.

Mr. Hammond

I am grateful to the Minister for going through the list of Government amendments. All of them—unusually, in my experience—are in response to amendments that we tabled or points that we raised in Committee which the Government were prepared to accept in principle while wanting to come back with their own drafting.

I do not wish to do what the Minister has done and read out the purpose of each amendment. However, I have one or two points to make. On amendment No. 46, I am grateful to the Minister for taking our suggestion on board and giving effect to it in the Bill. Similarly, on amendments Nos. 47, 51 and 52, we have always taken the view that it would be iniquitous for Ministers to use these powers to exempt individual establishments or agencies. The Minister of State made it clear that that was not the intention, but the Bill did not make that clear beyond doubt. I am grateful to the Government for agreeing to amend the Bill to make that incontrovertible.

I am also pleased to see amendment No. 48. We tabled a similar amendment in Committee, which the Government rejected. It is good to know that Ministers occasionally go away, think again and then reintroduce the same amendment that they rejected in Committee. We are interested in strengthening the legislation, making sure that it is workable, and in reinforcing and underlining the principle of uniformity in treatment across the different sectors. Therefore, I shall not carp about the fact that it is not my amendment that will be accepted but the Minister's, which is in exactly the same form. I am just glad that we got there in the end.

Amendments Nos. 49, 50, 80 and 81 deal, as the Minister said, with the rather tortuous language in relation to learning disabilities. The Minister of State said in Committee, that while he sympathised with the problems, he suspected that there might be some real technical difficulties because of the legacy of the language used in previous legislation and the way in which social care Bills have tended to build on each other. However, I am very pleased that the draftsmen have found a way round this. I think that the Minister was in the Committee when this was discussed, and she will agree that members on both sides felt genuinely uncomfortable that people with a learning disability were being defined as having an illness. In the early part of the 21st century, we should not characterise that condition as an illness. I am grateful to the Minister and her colleagues for addressing the problem.

My hon. Friend the Member for Meriden (Mrs. Spelman) and I tabled amendments Nos. 33 and 34. They address a simple, but potentially important, problem that could arise from clause 2. They would revise the definition of an independent clinic and an independent medical agency. The Bill provides that any establishment or agency that carries out any NHS work will be excluded from the definition "independent medical agency" or "independent clinic".

The problem arises because of the dual system of monitoring—the Commission for Health Improvement in the NHS and the National Care Standards Commission in the private sector, which has rather more teeth because it is able to deregister establishments or agencies when necessary. It cannot be right that, by performing a nominal service in pursuance of the National Health Service Act 1977, an establishment or an agency can move along the spectrum so as to be regulated under a different system.

The measure refers to any…services provided…in pursuance of the National Health Service 1977 Act. The amendment would change the word "any" to "a substantial part". The test would change. That establishment or agency would move from being regulated by the NCSC to regulation by CHIMP only when a substantial part of its services were being provided to the NHS. For example, if an independent medical agency provided out of hours services to a single GP for a small group of NHS patients, it would not be wholly excluded from NCSC control.

It seems common sense to us that the occasional provision of minor services to the NHS, at the margin, should not change the status of an establishment, any more than—as the Minister might argue—a hospital or NHS establishment that provided the occasional paid service to a private patient should be moved from the CHIMP to the NCSC system. Whether or not the Minister is minded to accept the amendments, I hope that she will acknowledge that there is a problem and will tell us whether she sees any other way to address it.

Amendment No. 97 would establish conclusively that the definition of "care home" cannot include units in a sheltered housing development. That issue has been raised again because some doubts, hesitations and concerns remain outside this place as to whether the Bill offers a proper and precise definition.

The issue is relevant because of the way in which the social security system determines the eligibility of individuals for housing benefit. If a sheltered housing development, where people occupied separate and individual units, was classed as part of a care home because it was located on a site where services were offered to occupants—perhaps on an ad hoc or a la carte basis—there could be a danger that such people would not be eligible for housing benefit. Organisations outside the House have again raised that issue and I hope that the Minister will tell us whether she will accept this amendment. It would simply make clear in the Bill something that the Minister of State said in Committee was the Government's intention.

1.15 am

I wish to say something about amendments Nos. 98 and 99 which were tabled by the hon. Member for Sutton and Cheam (Mr. Burstow) and his colleagues. They deal with nurse-led care provided in the home not by an agency, but by the direct supply of a nurse-led service. The hon. Gentleman has done the House a service in raising this issue because a problems needs to be addressed. A well-publicised case in Essex illustrates the problems of a nurse—in that case a nurse in the NHS—working in the homes of individuals. There is a clear need to ensure that nurse-led services are properly regulated.

The Minister may accept the hon. Gentleman's amendments. However, if she chooses not to do so, she must tell the House how the Government envisage regulation of direct nurse-led care. I hope that she will not resort to telling the House that the Secretary of State's powers under clause 42 could be used to widen the scope of the Bill. We take the view that it is not satisfactory, when a Bill is not yet on the statute book, for a Minister to suggest that the use of regulatory powers to extend its scope is an adequate alternative to sending the Bill back in good order to the other place for further consideration.

Mr. Burstow


Hon. Members

No, no.

Mr. Burstow

I rise with encouragement from some Labour Members. I wish to speak briefly to amendment No. 97 and then consider the amendments that were tabled by me and my hon. Friend the Member for Isle of Wight (Dr. Brand).

The Government amendments are all very welcome. They address several concerns that were raised by the hon. Member for Runnymede and Weybridge (Mr. Hammond) in Committee. The hon. Gentleman, in describing amendment No. 97, rightly alighted on another issue that we explored in Committee when we considered clause 100, which also deals with definitions. Through amendments that I and my hon. Friend tabled, we examined the issues relating to definitions. One of the points that came up then was that the definitions of personal care that were in the Bill at that stage called into question whether sheltered accommodation, sheltered housing and extra supported housing schemes would suddenly find themselves bracketed with care homes.

The Minister gave us assurances in Committee that seemed to imply that the only way to deal with the issue was almost to do away with a single definition of personal care and introduce a multiplicity of definitions. That gave me grave cause for concern in terms of the tenor of Government statements about their long-awaited response to the royal commission on long-term care.

Amendments Nos. 98 and 99 return us to a debate that we had in the Committee's third sitting when I and my hon. Friends sought to clarify the definition of medical agencies. The Minister offered reassurances that led us to withdraw two amendments that sought to probe the Government's intentions on that matter. However, we have since consulted further and we feel that there is a gap in the definitions through which some providers may pass, unregistered and unregulated. The hon. Member for Runnymede and Weybridge described a recent case that goes to the heart of the matter.

We are trying to ensure that health care services at home which are not based in clinics or hospitals will be covered by the regulatory framework that the Bill will put in place. Some may be covered by the term "independent medical agency" as defined in clause 2(5), but that definition is inadequate. Although in Committee the Minister assured us that the definition of "nurses agencies" would cover all our concerns, the Bill deals with them only in their role as staffing bureaux, and not as direct health service providers.

Health services provided in the home by nurses without the need for supervision by a doctor can be extremely complex; for example, home blood transfusions and chemotherapy are two of the important services now being provided in that way. Professions allied to medicine, such as occupational therapy and physiotherapy, are understandably and rightly providing services in the home, and they do not appear to be included in the Bill's regulatory framework. None of those examples fits the definitions in the Bill.

A health care staffing agency provides temporary and permanent staff, and there is confusion about that. We hope that the Minister will be able to clear that up in her response. Historically, nursing agencies have provided a mix of health and social care services, and that is why, in the other place, nursing agencies were included in the Bill in an amendment. As things stand, however, it is possible that direct health care provided at home, which is not covered by the provisions on nursing agencies, will be left unregulated. Those services will be covered only if they are provided by a nurse under the control of the patient. We therefore tabled amendments Nos. 98 and 99 to flag up the concerns felt by several people who are involved in providing such services and who are anxious that they will not be covered by the regulatory framework.

Dr. Brand

Does my hon. Friend agree that a good example of such services are those provided by independent midwives? They may well deliberately work without the support of a medical practitioner, and patients' only protection is the opportunity to complain to a regulatory authority, which deals with professional standards rather than the care provided.

Mr. Burstow

My hon. Friend is absolutely right to use independent midwives as an example of the problem that we are flagging up. We hope that the Government will accept that there is cause for concern and that the problem needs to be addressed. As my hon. Friend said, patients' only recourse in respect of such practitioners is through the professional body that registers them.

The Government have accepted that there needs to be one agency for the registration of people, such as social workers, and another separate agency for the regulation and registration of agencies and establishments. We think that the same rule should apply in this case.

Doctors will be regulated by the Bill, but nurses who work on their own will not necessarily be regulated. My hon. Friend gave another example of a practitioner who works alone. Nurses and care assistants do not appear to be caught within the regulatory framework, and professions allied to medicine also appear to be outwith the Bill's scope.

We hope that the Minister will accept that our concern is real and that, even if the precise wording of our amendments is unacceptable to the Government on technical grounds, they will find a vehicle in the other place to enable them to close the loophole.

Ms Stuart

I shall respond first to amendment No. 97, which is intended to ensure that sheltered housing schemes are not required to register as care homes. I am aware that concerns have been raised about whether sheltered housing or supported accommodation will be registrable as a care home, so I want to reassure hon. Members that we do not intend to extend the requirement to register to new types of accommodation that have not previously been regulated.

Clause 3 defines a care home as one providing accommodation together with nursing or personal care for persons who are or have been ill; persons who are disabled or infirm; or persons who are or have been dependent on alcohol or drugs. The Registered Homes Act 1984 included the provision of board within its definition of a residential care home, but the Bill omits it from its definition of a care home, so as to ensure that providers who, to all intents and purposes, run care homes, but are currently able to avoid registration by operating pay-as-you-eat schemes, are required to register.

There is no clear definition of what constitutes sheltered housing and little consistency in the use of the term in the field. I assure the House that it is not the Government's intention to require schemes in which people live in their own homes and receive personal or nursing care to register as care homes. The great majority of such sheltered housing schemes involve care being provided to people in their own homes, and a person's own home, whether that person is a tenant or the owner, will not be registrable as a care home.

Mr. Burstow

I want to check one point. We are dealing with a Government Bill, yet the Minister is telling us that it sets out no clear definition. Surely the Government have it in their power to provide a clear definition?

Ms Stuart

I was attempting to explain the parameters of registration. A fear had been expressed that we would extend the requirement, so I was making clear our intentions.

Mr. Hammond

We are not suggesting that the Minister would deliberately attempt to extend the requirement. The intention behind the amendment is to ensure that she does not inadvertently do so.

Ms Stuart

I am grateful for the hon. Gentleman's concern to ensure that we do not make mistakes. I assure him that we shall do everything in our power to ensure that there is no unintentional extension. I can add little to what I have already put on the record in connection with amendment No. 97.

Amendments Nos. 33 and 34 deal with clause 2, which, as currently drafted, contains a provision designed to ensure that independent clinics and independent medical agencies, which are mainly small organisations, are properly regulated, but not over-burdened by regulatory or review bodies. The amendments would change that, and I am surprised that such an approach has been adopted. Clause 2 provides that independent clinics, such as privately run walk-in medi-centres, and independent medical agencies, such as organisations that arrange for doctors to provide call-out services for private patients, will be regulated by the National Care Standards Commission only where they do not provide services to NHS patients. That is because services for NHS patients come within the remit of the arrangements that the NHS has in place to provide quality assurance. I have no intention of going into the arguments about whether the NHS and the independent sector should be regulated by the Commission for Health Improvement or by the National Care Standards Commission.

Clause 2 as it stands draws a clear demarcation of the National Care Standards Commission's role as regards independent clinics and independent medical agencies. Such establishments and undertakings will be regulated by the commission to the extent that they are wholly engaged in providing non-NHS services.

Mr. Hammond

The Minister is right, but our point is that, under the Bill as drafted, a private establishment that provides a service to a thousand private patients and one NHS patient pursuant to the National Health Service Act 1977 will cease to be regulated by the National Care Standards Commission. That strikes me as perverse and illogical.

1.30 am
Ms Stuart

I would be surprised if that theoretical example occurred in practice to any great extent. During our long discussions about how the regulatory scheme should work, we tried to establish a system which has the flexibility to enable providers to use the NHS and the private sector. The proposed amendments would change the balance which we felt was the right one. Where an independent clinic or an independent medical agency provided services for NHS patients, except where those services were a substantial part of its overall services, it would not only be regulated by the National Care Standards Commission, but would, to some extent, come under the NHS arrangements, for example, within the remit of CHIMP by dint of CHIMP's role in improving quality in the NHS.

Mr. Hammond

Is not that exactly what will happen in the case of an independent acute hospital that treats NHS patients?

Ms Stuart

It is a matter of horses for courses. The regulations should be relative to the size of the organisations. We consider that we have struck the right balance. We could discuss that further into the small hours, but we feel strongly that we have struck the right balance.

We would not welcome the change introduced by the amendments. We envisage that independent clinics and independent medical agencies will, in the main, be small businesses. Therefore, it is important that regulatory requirements strike the right balance, and they should not be over-regulated.

Dr. Brand

I should like to pursue the point made by the hon. Member for Runnymede and Weybridge (Mr. Hammond). Earlier, I referred to the provision of alternative medicines, where, not infrequently, one can persuade an alternative practitioner to accept someone as an NHS patient, as pro bono work, in exchange for the odd referral of paying patients. Such an establishment or sole practitioner would be providing a service to NHS patients, under the Minister's definition. It may be a significant part of their clinical work load, although perhaps not of their financial turnover. Under those circumstances, would such a clinic have to register?

Ms Stuart

If the clinic or medical practitioners are providing NHS services, they will be supervised by the NHS; if they provide medical services, they will come under the commission. I may be missing the point. However, we consider that we have struck the right balance when an organisation provides independent and NHS services.

I also have doubts about the practicality of the proposed amendments. The extent to which they would apply to independent clinics and independent medical agencies—placing them inside or outwith the regulatory ambit of the National Care Standards Commission—would hinge on an assessment of whether a substantial part of their services were for NHS patients. Who is to say what "substantial" might mean in that context? The amendments would cause confusion all round. They would place an unnecessary burden on independent clinics and independent medical agencies, something which I thought the Opposition were keen not to do. They do not improve the current balanced provision in clause 2.

Amendments Nos. 98 and 99 would require health care agencies to be regulated by the commission. I am unable to accept the amendments. The National Care Standards Commission will have a big programme of work when it takes on its regulatory functions. Not only will it be regulating those services that health and local authority inspection units regulate at the moment, but it will be regulating new services such as local authority homes, small children's homes and private doctors. To allow it to carry out that work successfully, we must ensure that it is not overburdened when it is first established. We have to consider which services might provide the most risk to the most vulnerable in our community.

When we consulted last year on the regulation of private and voluntary health care, there was no particular suggestion that the services that are included in the definition of "healthcare agency", such as occupational speech or physiotherapy services, should be regulated. The Bill already provides powers for the National Care Standards Commission to regulate independent medical agencies, nurses agencies and domiciliary care agencies. If any of those agencies carry out services included in the definition of "healthcare agency", they will in any case be regulated.

It is important that occupational therapists, speech therapists and physiotherapists, if they are to be state registered. are already required to register with the Council for the Professions Supplementary to Medicine. Although we do not believe that it is appropriate to regulate health care agencies at present, I cannot say whether the position might change in the future. To allow us extra flexibility, we introduced amendments in Committee to what is now clause 42, which gives us the power to bring other health or social care agencies within the regulatory framework.

We have a responsibility to ensure that the commission is not overburdened in its early years. However, if there is concern in the future about the safety of services provided by health care agencies to vulnerable people, we already have the power in the Bill to require them—

Mr. Burstow

I am grateful to the Minister for giving way. It sounds as though the argument for rejecting the amendments is based solely on a concern about the work load that the commission will face in its early years. Surely that is in the hands of the Government, in so far as the Government will draft the minimum standards against which the commission will do its work. If the standards are not introduced at an early stage, the definition may be in the Bill, but it will not be implemented.

Ms Stuart

I do not entirely agree with that interpretation. The consultation dealt with the aspects that should be addressed first. It is a matter not just of work load, but of priorities. If there is genuine concern, we have the power to extend regulation to health care agencies in the future. That is important.

Amendment agreed to.

Amendments made: No. 47, in page 2, line 11, after "is" insert "of a description".

No. 48, in page 2, line 14, leave out "An independent" and insert "A".—[Mr. Sutcliffe.]

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